Shupert v. Anaconda Aluminum Co.

696 P.2d 436, 215 Mont. 182
CourtMontana Supreme Court
DecidedMarch 4, 1985
Docket84-180
StatusPublished
Cited by27 cases

This text of 696 P.2d 436 (Shupert v. Anaconda Aluminum Co.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shupert v. Anaconda Aluminum Co., 696 P.2d 436, 215 Mont. 182 (Mo. 1985).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Claimant, Jesse R. Shupert, filed a petition with the Worker’s Compensation Court, Flathead County, seeking compensation for injuries suffered during his employment with defendant, Anaconda Aluminum Company, in Columbia Falls, Montana. Claimant appeals the denial of his petition.

On April 11, 1978, claimant was working as a pot reliner. While using a jackhammer to lift metal pads off a pot, he injured his back. The following day, claimant went to Dr. Peter Pisk, a chiropractor. Dr. Pisk diagnosed the injury as a fracture of the right fifth lumbar vertebrae. The defendant paid temporary total disability benefits to the claimant at the rate of $174 per week from April 14, 1978, until October 29, 1978.

On May 17,1978, claimant went to see Dr. Jack Hilleboe, an orthopedic surgeon. Dr. Hilleboe stated claimant sustained a herniated nucleus pulposis between the fourth and fifth lumbar vertebrae. Dr. Hilleboe referred claimant to Dr. Gary Cooney, a neurologist in Missoula. Dr. Cooney concurred in Dr. Hilleboe’s diagnosis. Dr. Cooney treated the claimant with bed rest, physical therapy, heat, ultrasound, massage and analgesic/anti-inflammatory drug therapy. When claimant did not improve with this course of treatment, Dr. Hilleboe referred him to another neurologist, Dr. Steve Johnson. Dr. [184]*184Johnson reported the cause of claimant’s back pain was unclear, but advised claimant “not to be in a job which entailed lifting.” Unable to find the etiology of claimant’s pain, Dr. Hilleboe concluded claimant’s problem was psychological. When his condition failed to improve claimant sought further evaluation from the Missoula Community Hospital Pain Clinic and the Virginia Mason Center in Seattle.

Claimant returned to work on a part-time basis for Anaconda on October 30, 1978, and continued in that capacity until May 1979 when he returned to work full-time, working as a pot reliner.

On November 26, 1980, claimant reinjured his back while using a 25-pound iron “Postman’s Bar” to break the crust out of the burners. Claimant testified “he had to work in a bent over position, and when he straightened he felt a pain in his lower back” that radiated down his left leg. Claimant discontinued working and received disability benefits from November 28 until December 17,1980. Claimant returned to work on December 17,1980, and drove an ore truck. Due to lack of seniority, he was returned to the labor pool and was again unable to perform the duties of a laborer. Claimant left the employ of Anaconda.

Claimant was last seen by Dr. Hilleboe on November 12, 1981. At that time Dr. Hilleboe referred the claimant to Dr. Robert Schimpff. Dr. Schimpff testified that the measurement of claimant’s thigh muscles varied by three centimeters. Dr. Schimpff attributed the atrophy to disuse of the left thigh. The claimant was also unable to dorsiflex his toes. Dr. Schimpff ordered an electromyogram and diagnosed the injury to the nerve root of the fifth lumbar vertebrae causing denervation of the muscles innervated by the L-5 nerve root. Dr. Schimpff referred claimant to a Spokane radiologist, Dr. William Tubbs. A CAT Scan report showed a central bulging disk between the fourth and fifth lumbar vertebrae. Dr. Schimpff testified that he and Dr. Cooney were unable to demonstrate if a nerve root was compressed. Dr. Schimpff restricted claimant’s activities on January 4, 1982, which included “no heavy lifting, excess walking or standing.” Dr. Schimpff has continued to see the claimant.

On December 14, 1982, the claimant was examined by Dr. Dean Ross, a specialist in physical medicine and rehabilitation. Dr. Ross concluded claimant had a double scoliosis in his spine which made him more susceptible to mechanical injury to his back. He found a prominent right paraspinous muscle resembling a muscle spasm. Based upon his examination, a review of the medical records and [185]*185test results, he testified that, in his opinion, there was nerve root injury to his L-5 nerve root and also a component of soft tissue injury. He further testified that he did not consider it a psychiatric illness or anything over which the patient had control.

Kevin Murphy, a specialist in rehabilitation psychology, testified that he saw the claimant on December 14, 1982. Dr. Murphy interviewed the claimant and administered behavioral and assessment tests. It was Dr. Murphy’s opinion that claimant did not have a hysterical personality, nor was he making up his complaints of pain.

Claimant was unable to return to employment since December 8, 1981. Claimant’s disability benefits were terminated on March 2, 1981. Anaconda refused to pay any further disability benefits. Claimant petitioned the Workers’ Compensation Court to find that he was totally disabled and entitled to total disability at the maximum rate. A hearing was held on May 31, 1983. Claimant, his wife, and two vocational rehabilitation counselors testified. Four medical experts testified by deposition: John Hilleboe, M.D., an orthopedic surgeon; Robert SchimpfF, M.D., a neurologist; Dean Ross, M.D., a psychiatrist and Kevin Murphy, a psychology and rehabilitation specialist. The deposition testimony was admitted into evidence by the Workers’ Compensation Court.

The Workers’ Compensation Court found that claimant did injure his back on April 11, 1978, during the course of his employment with the defendant, Anaconda Aluminum Company. The Workers’ Compensation Court also found that the claimant reinjured his lower back on November 26, 1980, with the same employer. The Workers’ Compensation Court concluded the claimant recovered from those injuries by December 8,1980, and any disability claimant now suffers is not the result of either of the two prior injuries.,

Claimant presents three issues on appeal:

(1) Whether the judgment of the Worker’s Compensation Court was supported by substantial evidence, or did the court err in relying upon the testimony of John W. Hilleboe, M.D., as substantial evidence?

(2) Whether the Workers’ Compensation Court’s finding was incorrect in concluding that there was no testimony relating claimant’s current symptoms to his original injury.

(3) Whether the court erred in concluding that claimant’s condition at the time of hearing was not a work-related injury.

The Workers’ Compensation Court in its findings of fact and conclusions of law cited to Dr. Hilleboe’s testimony:

[186]*186“The most the claimant has been able to prove is that his symptoms (not found as facts because not necessary to the disposition of this case) are consistent with a L-5 nerve root injury. Consistency is not causality. The claimant’s treating physician, Dr. Hilleboe, was adamant that there was nothing orthopedically wrong with the claimant; . . .”

Claimant submits the following excerpts from Dr. Hilleboe’s testimony are highly improbable, incredible and insufficient and therefore, does not constitute substantial evidence:

(1) Hilleboe testified that when he examined the claimant, shortly after his April, 1978, injury, he was of the opinion that claimant had sustained a herniated nucleus pulposis between the fourth and fifth lumbar vertebrae and that a herniated disk can leave permanent damage to the nerve root. However, later Hilleboe testified he found no objective physical signs of injury.

(2) One objective sign of injury is an abnormal curve in the spine or scoliosis.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nielson v. State Compensation Insurance Fund
2003 MT 95 (Montana Supreme Court, 2003)
Hanks v. Liberty Northwest Ins. Corp.
2002 MT 334 (Montana Supreme Court, 2002)
Killoy v. Reliance National Indemnity
923 P.2d 531 (Montana Supreme Court, 1996)
Wilson v. Liberty Mutual Fire Insurance
903 P.2d 785 (Montana Supreme Court, 1995)
Weber v. Public Employees' Retirement Board
890 P.2d 1296 (Montana Supreme Court, 1995)
McIntyre v. Glen Lake Irrigation District
813 P.2d 451 (Montana Supreme Court, 1991)
Schrapps v. Safeway Stores, Inc.
777 P.2d 887 (Montana Supreme Court, 1989)
Roadarmel v. Acme Concrete Co.
772 P.2d 1259 (Montana Supreme Court, 1989)
Hartman v. Staley Continental
768 P.2d 1380 (Montana Supreme Court, 1989)
Hurley v. Dupuis
759 P.2d 996 (Montana Supreme Court, 1988)
Houtchens v. State
754 P.2d 824 (Montana Supreme Court, 1988)
Brown v. Ament
752 P.2d 171 (Montana Supreme Court, 1988)
Kuenning v. Big Sky of Montana
750 P.2d 1091 (Montana Supreme Court, 1988)
Larson v. Squire Shops, Inc.
742 P.2d 1003 (Montana Supreme Court, 1987)
Currey v. 10 Minute Lube
736 P.2d 113 (Montana Supreme Court, 1987)
Dunn v. Champion International Corp.
720 P.2d 1186 (Montana Supreme Court, 1986)
Frost v. Anaconda Co.
701 P.2d 987 (Montana Supreme Court, 1985)
Shupert v. Anaconda Aluminum Co.
696 P.2d 436 (Montana Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
696 P.2d 436, 215 Mont. 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shupert-v-anaconda-aluminum-co-mont-1985.